Calif. court rejects cop job-bias claim

STATE APPEALS COURT

Updated 9:58 pm, Tuesday, December 11, 2012

A state appeals court rejected a discrimination claim Tuesday by a veteran San Francisco police officer who had a heart attack and then was told by the Police Department that he was no longer fit for any position, including a desk job.

The department was entitled to decide that all officers, including those in administrative positions, must be able to perform strenuous work in the event of an emergency or mass mobilization, said the First District Court of Appeal.

The court noted that San Francisco had eliminated permanent light-duty assignments for disabled officers almost two years before Kenneth Lui suffered a heart attack in December 2005.

Lui, an officer since 1981, took 11 months of full-pay disability leave, then was given a job in the police records room for a year, the maximum allowed by the department's policy.

When that assignment ended in 2007, Lui's cardiologist reported that he could not risk a return to physically strenuous work. He retired in April 2008 after turning down the department's offer to search for a nonpolice job with the city, the court said.

The only available position was a gardener's job that paid about one-fourth of Lui's $130,000-a-year police salary, said Lui's lawyer, Lawrence Murray. He said Lui now makes $15 an hour as a security guard and is struggling to get by.

Lui's lawsuit asserted that state law required the department to accommodate his disability by providing an administrative job. But the appeals court, upholding a judge's dismissal of the suit, said the department doesn't have all the street officers it needs and can legally require all officers to be available in emergencies.

San Francisco had to mobilize all its officers for about a week after the 1989 Loma Prieta earthquake. It also ordered full mobilizations during the 2003 Iraq war protests and the 2008 Beijing Olympics torch run, canceling all days off and putting police on 12-hour shifts, the court said.

Such duties are not frequent for desk officers, but they are "essential functions of the positions," said Justice Mark Simons in the 3-0 ruling.

Murray said the ruling and the department policy would send a message to other San Francisco officers to avoid risks. An officer "would have to be stupid to run into a situation where he or she could get hurt, because they wouldn't be able to feed their own family," the attorney said.